No. 98-2000

In the Supreme Court of the United States

DANIEL F. POTTS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMANSolicitor General

Counsel of RecordJAMES K. ROBINSON

Assistant Attorney GeneralTHOMAS E. BOOTH

AttorneyDepartment of JusticeWashington, D.C. 20530-0001(202) 514-2217

(I)

QUESTIONS PRESENTED

1. Whether police officers had reasonable suspicionto detain petitioner for investigation after stopping hiscar for traffic violations.

2. Whether the evidence at trial of petitioner’smarijuana trafficking constructively amended the indic-ment’s charge of a cocaine trafficking conspiracy.

(III)

TABLE OF CONTENTS

PageOpinion below ................................................................................. 1Jurisdiction ...................................................................................... 1Statement ........................................................................................ 2Argument ........................................................................................ 8Conclusion ....................................................................................... 19

TABLE OF AUTHORITIES

Cases:

Florida v. Royer, 460 U.S. 491 (1983) ...................... 11, 12, 16Jones v. United States, 119 S. Ct. 2090 (1999) .................. 18Karnes v. Skrutski, 62 F.3d 485 (3d Cir. 1995) ................ 15Knowles v. Iowa, 119 S. Ct. 484 (1999) .............................. 11Ohio v. Robinette, 519 U.S. 33 (1996) ................................. 8Ornelas v. United States, 517 U.S. 690 (1996) ................ 9, 13Reid v. Georgia, 448 U.S. 438 (1980) .............................. 11, 12Schmuck v. United States, 489 U.S. 705 (1989) ................ 17Stirone v. United States, 361 U.S. 212 (1960) ................... 17Terry v. Ohio, 392 U.S. 1 (1968) ......................... 10, 11, 12, 13United States v. Barahona, 990 F.2d 412 (8th Cir.

1993) ......................................................................................... 10United States v. Bloom, 975 F.2d 1447 (10th Cir.

1992) ......................................................................................... 16United States v. Cortez, 449 U.S. 411 (1981) ..................... 10United States v. Fernandez, 18 F.3d 874 (7th Cir.

1996) ..................................................................................... 15, 16United States v. Finke, 85 F.3d 855 (1st Cir.

1996) ......................................................................................... 9United States v. Glenn, 828 F.2d 855 (1st Cir.

1987) ......................................................................................... 18United States v. Gonzalez-Lerma, 14 F.3d 1479

(10th Cir.), cert. denied, 511 U.S. 1095 (1994) .................. 13United States v. Hernandez, 93 F.3d 1493 (10th

Cir. 1996) ................................................................................. 9

IV

Cases—Continued: Page

United States v. Johnson, 934 F.2d 936 (8th Cir.1991) ......................................................................................... 18

United States v. McRae, 81 F.3d 1528 (10th Cir.1996) ......................................................................................... 9

United States v. Milan-Diaz, 975 F.2d 720 (10thCir. 1992) ................................................................................. 16

United States v. Mitchell, 64 F.3d 1105 (7th Cir.1995), cert. denied, 517 U.S. 1158 (1996) ........................... 17

United States v. O’Connor, 737 F.2d 814 (9th Cir.1984), cert. denied, 469 U.S. 1218 (1985) ........................... 18

United States v. Peters, 10 F.3d 1517 (10th Cir.1993) ....................................................................................... 15-16

United States v. Place, 462 U.S. 696 (1983) ...................... 10United States v. Pruitt, 174 F.3d 1215 (11th Cir.

1999) ......................................................................................... 14United States v. Roberson, 6 F.3d 1088 (5th Cir.

1993), cert. denied, 510 U.S. 1204 (1994) ........................... 9United States v. Robinson, 414 U.S. 218 (1973) ............... 11United States v. Rodriquez, 976 F.2d 592 (1992),

amended, 997 F.2d 1306 (9th Cir. 1993) ............................. 17United States v. Rodriquex-Sanchez, 23 F.3d 1488

(9th Cir. 1994) ......................................................................... 16United States v. Sharpe, 470 U.S. 675 (1985) ................... 11United States v. Sokolow, 490 U.S. 1 (1989) ................. 10, 16United States v. Sullivan, 138 F.3d 126 (4th Cir.

1998) ......................................................................................... 9United States v. Walker, 933 F.2d 812 (10th Cir.

1991), cert. denied, 502 U.S. 1093 (1992) ........................... 15United States v. White, 81 F.3d 775 (8th Cir.),

cert. denied, 519 U.S. 1011 (1996) ....................................... 9United States v. Withers, 972 F.2d 837 (7th Cir.

1992) ......................................................................................... 11United States v. Wood, 106 F.3d 942 (10th Cir.

1997) ......................................................................................... 16Whren v. United States, 517 U.S. 806 (1996) .................... 8

V

Constitution, statutes, and rule:

U.S. Const. Amend. IV ..................................... 4, 6, 7, 8, 10, 1118 U.S.C. 1952(a) ....................................................................... 2, 421 U.S.C. 846 .............................................................................. 2, 46th Cir. R. 206(a) ....................................................................... 8

(1)

In the Supreme Court of the United States

No. 98-2000

DANIEL F. POTTS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-41) isunpublished, but the decision is noted at 173 F.3d 430(Table).

JURISDICTION

The judgment of the court of appeals was entered onFebruary 2, 1999. A petition for rehearing was deniedon March 18, 1999 (Pet. App. 73-74). The petition for awrit of certiorari was filed on June 14, 1999. The juris-diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District Courtfor the Eastern District of Tennessee, petitioner was

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convicted of conspiracy to distribute cocaine, in viola-tion of 21 U.S.C. 846, and interstate travel in further-ance of a cocaine distribution conspiracy, in violation of18 U.S.C. 1952(a). He was sentenced to 87 months’imprisonment to be followed by four years’ supervisedrelease. The court of appeals affirmed. Pet. App. 1-41.

1. On July 15, 1992, at 5:09 p.m., Officers BrentChamblee and Scott Thompson of the Sulphur, Louisi-ana, Police Department stopped petitioner’s silverMercedes-Benz automobile on an interstate highway forspeeding and changing lanes without signaling. AtOfficer Chamblee’s request, petitioner stepped outof the car and displayed his driver’s license. OfficerChamblee advised petitioner that he had committedtwo traffic offenses. Pet. App. 3; Gov’t C.A. Br. 2.

Officer Chamblee asked petitioner where he wasgoing. Petitioner replied, “Houston.” Officer Cham-blee asked petitioner why he was going to Houston, andpetitioner replied that he was going there to do “land,oil and gas work.” Officer Chamblee asked petitionerhow long he would be in Houston, and petitioner repliedthat he would be there about ten days. Officer Cham-blee asked petitioner whether he had any businesscards, and petitioner, after some hesitation, said that hedid not. Officer Chamblee noticed that petitioner, whohad originally appeared calm, became nervous whenasked about his business, as reflected in his body lan-guage and his voice inflection. Officer Chamblee alsobegan to suspect that petitioner was fabricating hisanswers about his business. Pet. App. 4, 12-13, 45-46.

Officer Chamblee then asked petitioner where he wasgoing to work in Houston. Petitioner said that he wasworking for some people in Tennessee who wanted apartner in Houston. Officer Chamblee considered thatanswer to be evasive and unresponsive to his question.

3

Officer Chamblee asked petitioner where he had comefrom, and petitioner replied that he had spent the pre-vious night in Chattanooga, Tennessee. Pet. App. 13,46.

Officer Chamblee checked the car’s registration,which showed that the car was registered to petitioner.Officer Chamblee then asked petitioner whether he wascarrying anything illegal in the car. Petitioner repliedthat he was not. Officer Chamblee asked for permissionto search the car, but petitioner refused. Pet. App. 13.

About four minutes after petitioner’s car was stop-ped, Officer Chamblee called to request a criminal his-tory check on petitioner and a canine unit. About fourminutes later, Officer Chamblee received the criminalhistory report, which showed that petitioner had beenarrested on a marijuana charge in 1975. At the sametime, the canine unit arrived. About three minutesafter that, or 11 minutes after the inception of thetraffic stop, the drug-sniffing dog indicated the pre-sence of drugs in petitioner’s car. Pet. App. 4, 13.

Officers Chamblee and Thompson searched peti-tioner’s car and found $121,000 in cash, a small quantityof marijuana, and an address book that contained thename of Inman Ray McAndrew, a drug dealer. Theofficers arrested petitioner and impounded the car. Thefollowing day, Officer Chamblee searched the car morethoroughly, discovering a secret compartment that wasthe size and shape needed to transport kilograms ofcocaine. Pet. App. 4-5.

Two days after the arrest, Officer Chamblee issued atraffic citation to petitioner for speeding and changinglanes without signaling. The State of Louisiana sub-sequently forfeited petitioner’s car. Pet. App. 5.

2. In 1995, a federal grand jury indicted petitioner,along with McAndrew and ten other individuals, in

4

connection with a cocaine trafficking conspiracy thanspanned some 12 years. Petitioner was charged withintent to distribute cocaine, in violation of 21 U.S.C.846, and traveling in interstate commerce for the pur-pose of furthering the conspiracy, in violation of 18U.S.C. 1952(a).

a. Petitioner moved to suppress the evidence ob-tained as a result of the stop and subsequent search ofhis car in Sulphur, Louisiana. He contended, amongother things, that the police officers violated his FourthAmendment rights when they detained him until thecanine unit arrived. Pet. App. 2, 5.

The magistrate judge recommended that the motionbe denied. Pet. App. 42-69. After concluding that thestop of petitioner’s car was permissible because theofficers had probable cause to believe that petitionerhad committed traffic offenses (id. at 57- 58), the magis-trate judge concluded that the officers had not unrea-sonably detained petitioner pending the arrival of thecanine unit (id. at 59-67). The magistrate judge ex-plained that petitioner’s detention during the “briefperiod” between the officer’s stop of his car and thedrug dog’s alerting on the car “did not exceed the scopeof the original traffic stop” (id. at 64), noting that “[t]hepurposes of the original traffic stop (i.e., to cite [peti-tioner] for the two traffic [violations] or possibly toissue him a warning) most likely could not have beencompleted during this short period of time” (id. at 66).The magistrate judge also explained that, in any event,the officers developed reasonable suspicion early in thetraffic stop, based on petitioner’s “nervousness and theway he answered Officer Chamblee’s questions,” tojustify detaining petitioner until the drug-sniffing dogarrived. Id. at 64-65. The magistrate judge creditedOfficer Chamblee’s testimony concerning petitioner’s

5

nervousness when asked about his business and hishesitant and unresponsive answers (id. at 64), observ-ing that “[s]ome weight must be given to the instinctsof a trained police officer” in assessing whether anindividual’s conduct warrants suspicion (id. at 65).

The district court, after de novo review, accepted themagistrate’s recommendation that petitioner’s motionto suppress be denied. The court found that “the deten-tion of [petitioner] while the drug dog was summonedwas only for a very short period of time and wasreasonable under the circumstances.” Pet. App. 71.

b. The evidence at trial established that petitionerand co-defendant McAndrew, who pleaded guiltyand testified for the government, jointly traffickedin cocaine and marijuana during the 1980s in Knoxville,Tennessee. In September 1984, for example, McAn-drew gave petitioner two kilograms of cocaine oncredit, in the expectation that the two would share theproceeds from the sale of the cocaine. Also in late 1984,McAndrew, who was about to be incarcerated on a drugconviction, introduced petitioner to Mark Roberts,another drug dealer, so that petitioner would have analternate purchaser for his cocaine. During the nextseveral years, petitioner regularly sold cocaine toRoberts for resale. In addition, petitioner visitedMcAndrew in prison, where the two discussed futuredrug deals. After McAndrew’s release in 1991, peti-tioner regularly supplied McAndrew with cocaine andmarijuana from petitioner’s source in Texas. Onoccasion, McAndrew would send a courier to Texas topurchase drugs directly from petitioner. Pet. App. 6-7;Gov’t C.A. Br. 5-8.

At the close of the government’s case, petitionermoved for a judgment of acquittal. He argued, amongother things, that a fatal variance existed between the

6

indictment and the government’s evidence at trial,because the indictment alleged a cocaine traffickingconspiracy but the evidence related to his marijuanatrafficking as well as to his cocaine trafficking. Thedistrict court denied the motion. At petitioner’srequest, however, the court instructed the jury that thedefendants were not charged with any marijuanatrafficking offense, and that the evidence concerningmarijuana was being admitted only because “it willmake better sense to you all about what was going on.”Gov’t C.A. Br. 4, 24.

The jury found petitioner guilty of both of the crimeswith which he was charged. Pet. App. 7; Gov’t C.A. Br.4.

3. A divided panel of the Sixth Circuit affirmed.Pet. App. 1-41.

First, the court held that the traffic stop and sub-sequent detention of petitioner did not violate theFourth Amendment. Pet. App. 7-14. The court re-jected petitioner’s contention that the officers exceededthe scope of the traffic stop by asking the origin,destination, and purpose of his travel. The courtexplained that “[i]t is well established that an officer isfree to ask traffic-related questions, and questionsabout a driver’s identity, business and his travel plansduring the course of a traffic stop.” Pet. App. 10, 11.

The court also rejected petitioner’s contention thatOfficer Chamblee impermissibly extended the durationof the traffic stop by requesting a criminal historycheck and a drug-sniffing dog. Pet. App. 11. By thattime, the court explained, Officer Chamblee had alreadydeveloped “the necessary reasonable articulable suspi-cion to justify a further detention” of petitioner, be-cause petitioner had “answered his questions evasively,appeared nervous, and appeared to be making up his

7

answers to questions.” Ibid. The court added that,although “[a]n officer could not build reasonable ar-ticulable suspicion on any one of these factors alone,”“[c]ollectively, * * * they suffice.” Ibid. The courtalso observed that Officer Chamblee “was still author-ized to detain [petitioner] when he called dispatch forthese additional investigatory measures,” becauseOfficer Chamblee had not yet completed the process ofissuing citations to petitioner for his traffic offenses.Id. at 13.

Second, the court held that the evidence at trial didnot constructively amend the indictment by showingthat petitioner trafficked in marijuana as well ascocaine. Pet. App. 23-26. The court explained thatevidence of other, uncharged crimes is admissiblewhere, as here, it is so “inextricably intertwined” withevidence of the charged crime that “the evidence of thetwo could not be presented separately.” Id. at 23, 25.The court noted that petitioner’s and McAndrew’s“conversations about marijuana often occurred simul-taneous to their discussions about cocaine,” with thetwo men “switch[ing] back and forth discussing bothmarijuana and cocaine deals.” Id. at 25. The court alsonoted that there was ample evidence to link petitionerto the cocaine conspiracy, such as McAndrew’s testi-mony that, although petitioner “mainly dealt mari-juana,” petitioner also “provided [McAndrew] withcocaine when McAndrew could not rely on his mainsupplier.” Ibid.; see also id. at 21 (identifying “the sub-stantial evidence establishing that [petitioner] played akey role in the cocaine conspiracy ring”).

Judge Gibson, sitting by designation, dissented onthe question whether petitioner’s detention pending thecriminal history check and the arrival of the drug-sniffing dog violated the Fourth Amendment. Pet.

8

App. 35-41. Judge Gibson agreed that the majority hadapplied the proper legal standard in resolving thatquestion: whether the officers had “at least ‘reasonablesuspicion’ that [petitioner] had taken part in furthercriminal activity” in order to detain him “beyond thepoint at which his traffic violations were resolved.” Id.at 37. But Judge Gibson disagreed that the standardwas satisfied on the facts of this case. Judge Gibsonreasoned that petitioner’s nervousness and “slightlyimprecise responses” were insufficient to give OfficerChamblee reasonable suspicion that petitioner wasengaged in criminal activity. Id. at 39-40.

ARGUMENT

1. Petitioner principally contends (Pet. 9-23) that thepolice officers violated the Fourth Amendment byextending the stop of his car for traffic offenses in orderto investigate whether he had committed other of-fenses. That claim does not warrant review. The courtof appeals’ disposition of the Fourth Amendment ques-tion is correct and consistent with the decisions of thisCourt and other courts of appeals. The unpublishedopinion in this case does not purport to articulate anynew rule of law, see 6th Cir. R. 206(a) (an opinion shouldbe published if it “establishes a new rule of law” or“alters or modifies an existing rule of law”), but insteadinvolves simply the application of settled legal princi-ples to the unique facts of this case.

a. A police officer may stop a vehicle if he has prob-able cause to believe that the motorist has committed atraffic offense. The officer’s subjective motivations inmaking the stop are irrelevant. See, e.g., Ohio v. Robi-nette, 519 U.S. 33, 38 (1996); Whren v. United States,517 U.S. 806, 813 (1996). It is within the proper scope ofa traffic stop for an officer to demand the motorist’s li-

9

cense and registration and to question the motoristabout his itinerary. See, e.g., United States v. Hernan-dez, 93 F.3d 1493, 1499 (10th Cir. 1996) (“questionsabout [a motorist’s] destination and his relationship tohis passengers * * * may be asked as a matter ofcourse without exceeding the proper scope of a trafficstop”); United States v. White, 81 F.3d 775, 778 (8thCir.) (“a reasonable investigation during a traffic stopmay include asking for the driver’s license and registra-tion * * * and asking the driver about his destinationand purpose”) (internal quotation marks omitted), cert.denied, 519 U.S. 1011 (1996); United States v. Roberson,6 F.3d 1088, 1092-1093 (5th Cir. 1993) (recognizing thatofficers may engage during a traffic stop in “routine”questioning concerning, for example, “the ownership ofthe vehicle” and “the occupants’ point of departure”),cert. denied, 510 U.S. 1204 (1994). In addition, the offi-cer may run a computer check, including a criminal his-tory search, so long as the check does not unduly pro-long the detention. See, e.g., United States v. Finke, 85F.3d 1275, 1279-1280 (7th Cir. 1996); United States v.McRae, 81 F.3d 1528, 1535-1536 n.6 (10th Cir. 1996);White, 81 F.3d at 778.

Once a police officer has completed his investigationand citation of the traffic offense that gave rise to thestop, the motorist must be permitted to leave, unlessthe officer has by that time developed reasonable suspi-cion that the motorist has committed or is committinganother offense. See United States v. Sullivan, 138F.3d 126, 131 (4th Cir. 1998); McRae, 81 F.3d at 1535. Areasonable suspicion to continue to detain a motoristrequires a “particularized and objective basis forsuspecting the person stopped of criminal activity,”Ornelas v. United States, 517 U.S. 690, 696 (1996)(internal quotation marks omitted), in addition to the

10

original traffic offense. It is based on all of the cir-cumstances known to the officer, and it credits theofficer’s inferences and deductions. See United Statesv. Sokolow, 490 U.S. 1, 7-10 (1989); United States v.Cortez, 449 U.S. 411, 417-418 (1981); Terry v. Ohio, 392U.S. 1, 27-28 (1968). Even wholly innocent conduct,viewed by a trained officer, may support a finding ofreasonable suspicion. Sokolow, 490 U.S. at 9-10.

Here, the police officers acted within the properscope of the traffic stop when they questioned peti-tioner about his itinerary and purpose. Such questionswere “reasonably related to ascertaining the reasonsfor [petitioner’s traffic violations] and whether he poseda danger to others on the road.” United States v.Barahona, 990 F.2d 412, 416 (8th Cir. 1993) (officerasked a motorist where he was going and whether hewas on vacation). The officers’ requests for a criminalhistory report and a drug-sniffing dog did not extendthe traffic stop any longer than was necessary to ac-complish its original purpose. Both the criminal historyreport and the canine unit arrived within eight minutesof the initial stop of petitioner’s car—less time than theofficers would have required simply to write up peti-tioner’s traffic citations. See Pet. App. 66 (the officers“would likely have taken at least 15 minutes to write[the traffic citations] up at the scene of the stop”).

Moreover, based on petitioner’s answers and be-havior in response to Officer Chamblee’s questions, theofficers had reasonable suspicion to continue to detainpetitioner, at least for the short time required for thedrug-sniffing dog to circle the vehicle.1 Petitioner’s

1 A dog sniff on property is not a search under the Fourth

Amendment and thus needs no independent justification. UnitedStates v. Place, 462 U.S. 696, 707 (1983).

11

sudden nervousness when asked about his business inHouston and his seemingly vague, evasive, and fabri-cated responses to Officer Chamblee’s questions gavethe officers an objective basis for concluding thatpetitioner might have drugs or other evidence of drugcrimes in the car. See, e.g., United States v. Withers,972 F.2d 837, 843 (7th Cir. 1992) (reasonable suspicioncould properly be based on such factors as the defen-dant’s nervousness, vague and inconsistent answers,and prior arrest). And once the drug-sniffing dogalerted on petitioner’s car, the officers had probablecause to believe that petitioner was concealing drugs inthe car. All of those events occurred within 11 minutesof the initial stop, which was well within the permissibletemporal limits of an investigative detention. See, e.g.,United States v. Sharpe, 470 U.S. 675, 682-688 (1985)(20-minute investigative stop of motorist was reaso-nable).

b. Petitioner contends (Pet. 11-14, 19-20) that thecourt of appeals’ decision in this case conflicts “with thespirit of ” Knowles v. Iowa, 119 S. Ct. 484 (1998), and“direct[ly]” with Terry v. Ohio, 392 U.S. 1 (1968); Flor-ida v. Royer, 460 U.S. 491 (1983) (plurality opinion), andReid v. Georgia, 448 U.S. 438 (1980) (per curiam). Peti-tioner is mistaken.

In Knowles, the Court held that the Fourth Amend-ment does not authorize a full search of a vehicleincident to the citation of the driver for speeding. 119S. Ct. at 487-488 (declining to extend United States v.Robinson, 414 U.S. 218 (1973), to create a “bright-linerule” of search incident to citation). Knowles did notaddress whether, or in what circumstances, policeofficers may ask a motorist questions during a trafficstop relating to his travel or request a criminal historyreport. Nor did Knowles address whether police

12

officers may have reasonable suspicion to detain amotorist further based on his nervousness and hisseemingly vague, evasive, and fabricated answers tothe officers’ questions. Finally, the search of the car inthis case, unlike the search in Knowles, took place afterthe officers acquired probable cause to believe that adrug violation was taking place. It was not based onthe traffic citations alone.

In Terry, the Court stated, as petitioner notes (Pet.13), that an investigative detention must be “justified atits inception” by at least reasonable suspicion on thepart of a law-enforcement officer and must be “reason-ably related in scope to the circumstances which justi-fied the interference in the first place.” 392 U.S. at 20.And in Royer, the plurality stated, as petitioner notes(Pet. 13), that an investigative stop must “last no longerthan is necessary to effectuate the purpose of the stop.”460 U.S. at 500. The court of appeals recognized andapplied those principles in this case, consideringwhether the officers were justified at the outset instopping petitioner for traffic offenses, whether theofficers’ questioning of petitioner was reasonablyrelated to the purpose of a traffic stop, and whether theofficers subsequently developed reasonable suspicion todetain petitioner to investigate additional offenses. SeePet. App. 8-11.

In Reid, the Court addressed whether a law-enforce-ment officer had reasonable suspicion to stop two menfor investigation at an airport based largely on factorscommon to “a very large category of presumably inno-cent travelers.” 448 U.S. at 441. That is not whatoccurred here. The police officers had reasonablesuspicion to stop petitioner because he had committedtwo traffic offenses in their presence. Moreover, even ifthe officers detained petitioner beyond the time

13

required by the initial traffic stop (which, as discussedabove, they did not), the officers by that time hadreasonable suspicion to investigate petitioner for otheroffenses, which was based not on factors common to “avery large category of presumably innocent travelers,”but on petitioner’s specific behavior (i.e., nervous,evasive, and seemingly fabricated responses to ques-tions about the purpose of his travel) and, shortlythereafter, on petitioner’s arrest record.

c. Petitioner next contends (Pet. 14) that the deci-sion below is in “direct conflict” with various decisionsof other circuits. Again, petitioner is mistaken. In thiscase and in the assertedly conflicting cases cited bypetitioner, the courts of appeals applied the samesettled legal standards, as articulated in Terry and itsprogeny, to unique factual scenarios. That the courtsreached different results on different facts does notdemonstrate the existence of any circuit conflict.2 Asthis Court has recognized, the question whether anyparticular investigative detention was justified byreasonable suspicion is highly fact-specific. See, e.g.,Ornelas, 517 U.S. at 698 (“one determination [of rea-sonable suspicion] will seldom be useful ‘precedent’ foranother”); Terry, 392 U.S. at 15 (“[n]o judicial opinioncan comprehend the protean variety of the street

2 Although petitioner claims (Pet. 14) a “direct conflict” with

United States v. Gonzalez-Lerma, 14 F.3d 1479 (10th Cir.), cert.denied, 511 U.S. 1095 (1994), the court of appeals held in that casethat the officers had reasonable suspicion to detain the defendantfor investigation unrelated to the initial traffic stop. See id. at1483-1484. In Gonzalez-Lerma, moreover, the court of appealsrecognized that the officers could permissibly question a motorist,incident to the initial traffic stop, concerning the reason for histravels and the identity of the employer whose truck he was sup-posedly driving. See id. at 1483.

14

encounter, and we can only judge the facts of the casebefore us”).

For example, United States v. Pruitt, 174 F.3d 1215(11th Cir. 1999), the case principally relied on bypetitioner (Pet. 15), involved facts unlike those here. InPruitt, after stopping a vehicle for a traffic violationand asking the driver for his registration and insurancepapers, the officer questioned the driver and his pas-sengers at length about matters unrelated to the trafficviolation, including the driver’s occupation, the price ofthe vehicle, whether a passenger was related to thedriver, and why the passenger and the driver haddifferent last names. 174 F.3d at 1217-1218, 1221. Theofficer then detained the driver and the passengers,without any articulated grounds for suspecting them ofillegal activity, for “nearly one-half hour” until a drug-sniffing dog arrived. Id. at 1218. Pruitt is distinguish-able from the present case in at least three respects.First, in contrast to the officer in Pruitt, Officer Cham-blee asked petitioner questions that were related to thepurpose of the traffic stop. Second, in contrast to theofficer in Pruitt, Officer Chamblee developed reason-able suspicion while investigating the traffic offensesthat petitioner was engaged in other illegal activity.Third, petitioner was detained only eight minutes—less than one-third as long as the defendants in Pruitt—awaiting the arrival of the drug-sniffing dog and thecriminal history check.3 The Eleventh Circuit’s deci-sion in Pruitt was based on its perception of the deten-tion as a “lengthy” one, 174 F.3d at 1221, a perception

3 The Eleventh Circuit was also concerned in Pruitt that the

defendants may have been singled out because they were Hispanic,see 174 F.3d at 1221, a concern that is not present in this case.

15

that would be particularly unwarranted with respect tothe detention in this case.4

Petitioner further claims (Pet. 20-22) that thedecision below conflicts with “a number of circuit courtdecisions,” of which he cites only two Tenth Circuitcases, “restricting the use of the common characteristicof nervousness to justify detention.” The Tenth Circuit,consistent with the Sixth Circuit in this case, recognizesthat an individual’s nervousness may be taken intoaccount as part of the totality of circumstances bearingon whether officers had reasonable suspicion to detainhim for further investigation. See United States v.Fernandez, 18 F.3d 874, 879 (10th Cir. 1994) (observingthat “a person’s nervous behavior may be relevant” but“must be treated with caution”) (quoting United States

4 The other cases relied on by petitioner (see Pet. 15-16) are

also distinguishable on their facts. In United States v. Walker, 933F.2d 812, 814 (10th Cir. 1991), cert. denied, 502 U.S. 1093 (1992), forexample, the court of appeals held that the officer had unrea-sonably detained the defendant motorist by asking him “a numberof specific questions unrelated to the traffic stop.” The court alsoacknowledged that “our determination that the defendant wasunlawfully detained might be different if the questioning by theofficer did not delay the stop beyond the measure of time neces-sary to issue a citation,” id. at 816 n.2, as was the case here.

In Karnes v. Skrutski, 62 F.3d 485, 497 (3d Cir. 1995), theofficers had detained the motorist for two and one-half hours afterthe initial traffic stop—most of which the court of appeals attrib-uted to the officers’ “dilatory pursuit of their investigation” intowhether the motorist possessed drugs. The court did not defini-tively decide in Karnes whether the officers had reasonablesuspicion to detain the motorist for any period of time beyond thatnecessary to issue a traffic citation. It simply held that the districtcourt erred in resolving the issue as a matter of law in favor of theofficers in a civil-rights action brought by the motorist. See id. at494.

16

v. Peters, 10 F.3d 1517, 1521 (10th Cir. 1993), andUnited States v. Millan-Diaz, 975 F.2d 720, 722 (10thCir. 1992)); accord Royer, 460 U.S. at 493 n.2, 502(plurality opinion) (officers had reasonable suspicion todetain a traveler based on an array of factors thatincluded his visible nervousness); id. at 518 (Blackmun,J., dissenting); id. at 523-524 (Rehnquist, J., dissent-ing).5 While the Tenth Circuit has said that nervousnessalone ordinarily cannot establish reasonable suspicion,see Fernandez, 18 F.3d at 880, so did the Sixth Circuitin this case. See Pet. App. 11 (explaining that, although“[a]n officer could not build reasonable articulablesuspicion on any one of these factors alone,” such aspetitioner’s nervousness, “[c]ollectively, however, theysuffice”). No conflict thus exists between the TenthCircuit and the Sixth Circuit on the role of nervousnessin the reasonable suspicion analysis.6

5 In United States v. Bloom, 975 F.2d 1447, 1458 (10th Cir.

1992), another case cited by petitioner, the court of appeals ex-plained that an individual’s general nervousness during an encoun-ter with law-enforcement officers may not be very probative,where the officers did not have “any prior knowledge of [theindividual]” that would enable them to know whether he “wasacting nervous and excited or whether he was merely acting in hisnormal manner.” The present case, however, does not involvegeneral nervousness, but rather petitioner’s particularized nerv-ousness that suddenly manifested itself when he was asked abouthis business.

6 Petitioner cites (Pet. 22) two other cases—United States v.Rodriguez-Sanchez, 23 F.3d 1488 (9th Cir. 1994), and United Statesv. Wood, 106 F.3d 942 (10th Cir. 1997)—for the proposition thatonly those “factors [that] point to particularized criminal activity”may be used in the determination of reasonable suspicion. As thisCourt has recognized, however, factors “quite consistent withinnocent [activity],” when “taken together,” may “amount to rea-sonable suspicion.” Sokolow, 490 U.S. at 9. The Ninth and Tenth

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2. Petitioner also contends (Pet. 23-29) that theindictment was constructively amended by evidencethat he trafficked in marijuana as well as cocaine. Thatclaim is fact-bound and, for that reason alone, does notwarrant the Court’s review. In any event, the claim iswithout merit.

An indictment is constructively amended when theproof at trial or the jury instructions permit the jury tofind the defendant guilty of an offense not charged inthe indictment. See Schmuck v. United States, 489 U.S.705, 717-718 (1989); Stirone v. United States, 361 U.S.212, 217 (1960). The admission of the marijuana evi-dence in this case did not constructively amend theindictment. The evidence of petitioner’s marijuanadealing, which often occurred at the same time and withthe same buyer as petitioner’s cocaine dealing (see Pet.App. 25; Gov’t C.A. Br. 24), was properly admitted forthe limited purpose of showing the existence and scopeof the charged cocaine trafficking conspiracy and peti-tioner’s role in it. The district court carefully in-structed the jury on the limited purpose for which theevidence was admitted, explaining that “[t]he onlyreason we’re allowing this testimony concerning themarijuana is so that it will make better sense to you allabout what was going on,” and cautioning that “thesemen are not charged with marijuana and don’t let thatinfluence you in connection with the claim that they’re Circuits do not disagree. See United States v. Rodriguez, 976 F.2d592, 596 (1992) (“factors consistent with innocent travel might,when taken together, amount to reasonable suspicion”), amended,997 F.2d 1306 (9th Cir. 1993); Wood, 106 F.3d at 948 (“the nature ofthe totality of the circumstances test makes it possible for indi-vidually innocuous factors to add up to reasonable suspicion”); cf.Rodriguez-Sanchez, 23 F.3d at 1492-1493 (case cited by petitionersustaining investigatory detention based on reasonable suspicion).

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dealing in cocaine.” Gov’t C.A. Br. 24-25.7 The jurymust be presumed to have followed the court’s instruc-tion. Jones v. United States, 119 S. Ct. 2090, 2105(1999). Especially in light of that instruction, petitionerwas not at risk of being convicted of a crime differentfrom the one charged in the indictment. See UnitedStates v. Mitchell, 64 F.3d 1105, 1111-1112 (7th Cir.1995) (admission of evidence that the defendant pos-sessed heroin did not constructively amend the indict-ment charging the defendant with possession of mari-juana and cocaine, where a jury instruction limited thecharges to those in the indictment), cert. denied, 517U.S. 1158 (1996); accord, e.g., United States v. Johnson,934 F.2d 936, 941-942 (8th Cir. 1991); United States v.O’Connor, 737 F.2d 814, 821-822 (9th Cir. 1984), cert.denied, 469 U.S. 1218 (1985).8

7 The complete instruction given by the district court, at

petitioner’s request, was the following:

Members of the jury, remember that these defendants are notcharged with trafficking or conspiring to traffic[] in marijuana,but only cocaine. The only reason we’re allowing this testi-mony concerning the marijuana is so that it will make bettersense to you all about what was going on.

But remember these men are not charged with marijuana anddon’t let that influence you in connection with the claim thatthey’re dealing in cocaine. Now, it’s cocaine is the charge here.Is that sufficient?

Gov’t C.A. Br. 24-25.8 Contrary to petitioner’s assertion (Pet. 25-26), the decision

below is not inconsistent on the constructive amendment issuewith United States v. Glenn, 828 F.2d 855 (1st Cir. 1987). InGlenn, although the indictment charged the defendants with con-spiracy to import and possess marijuana from Thailand and hash-ish from Pakistan, the evidence established only that one defen-dant participated in a marijuana conspiracy and the other

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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMANSolicitor General

JAMES K. ROBINSONAssistant Attorney General

THOMAS E. BOOTHAttorney

SEPTEMBER 1999

participated in a hashish conspiracy. See id. at 858-859. Here, bycontrast, there was no variance between the indictment and theproof. As the court of appeals recognized (Pet. App. 21), the evi-dence at trial established, consistent with the indictment, that peti-tioner participated in a conspiracy to distribute cocaine. In addi-tion, the jury instruction ensured that petitioner would not beconvicted of an uncharged marijuana offense.